The High Court ruled last week that although it had been lawful for the Government to set a default retirement age (DRA) of 65 a few years ago, there was now a “compelling” case for scrapping it. The judge in R (on the application of Age UK) v Secretary of State for Business Innovation and Skills and ors (better known as Heyday) also said it was lawful to allow employers to objectively justify age discrimination.

The European Court of Justice had ruled earlier in the year that the provisions in the Employment Equality (Age Discrimination) Regulations 2006 requiring employees over a certain age to retire fell within the scope of the European Equal Treatment Framework Directive (see weekly LELR 115). It also ruled that the UK’s compulsory retirement provisions would have to be justified to a “high standard of proof”.

The High Court has now said that the DRA was a proportionate means of achieving legitimate social policy aims such as protecting the integrity of the labour market, but that there were powerful reasons why “an age over 65” should have been adopted, such as creating a change of culture with respect to retirement and age discrimination, and breaking the connection between retirement age and pension age.

The judge made it very clear that if a DRA of 65 had been adopted for the first time in 2009, or there had been no indication of an imminent review, he would have concluded “that the selection of age 65 would not have been proportionate”.

This was because “It creates greater discriminatory effect than is necessary on a class of people who both are able to and want to continue in their employment. A higher age would not have any general detrimental labour market consequences or block access to high level jobs by future generations. If the selection of age 65 is not necessary it cannot therefore be justified”.

A more detailed summary of the case will appear in a future edition of LELR.